Kelly Thomas case: Officers ordered to trial

Tony Rackauckas, Orange County's elected district attorney, shows Fullerton police Sgt. Michael Chocek, a witness, a Taser similar to the one allegedly used as a blunt-force weapon against Kelly Thomas, during day three of a preliminary hearing into the homeless man's death.JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER

SANTA ANA – There was sufficient evidence presented at a preliminary hearing last year to warrant a trial for two Fullerton police officers charged in connection with the beating death of a mentally ill homeless man in July 2011, an Orange County judge ruled Friday.

Superior Court Judge William Froeberg said he is not deciding whether Officer Manuel Ramos and Cpl. Jay Cicinelli used reasonable or unreasonable force in the July 5, 2011, encounter with transient Kelly Thomas at the Fullerton Transportation Center. The resolution of that issue, Froeberg wrote in a tentative ruling made final Friday, properly belongs to a judge or a jury after a trial.

Defense attorneys filed motions last year to dismiss the charges, contending there was insufficient evidence to send the case to a jury.

Froeberg's ruling – which confirms a tentative finding he issued Jan. 4 – sets the stage for the first murder trial in Orange County history of a police officer for an incident that occurred on-duty and while the officer was in uniform.

Thomas, 37, died July 10, 2011, when his life support was turned off five days after a confrontation with six Fullerton police officers in the parking lot at the Fullerton Transportation Center that was captured by a surveillance camera after a call came about a man pulling on the handles of locked cars.

Orange County District Attorney Tony Rackauckas charged Ramos, 38, with second-degree murder and involuntary manslaughter, contending that Ramos set in motion an assault on Thomas when he snapped on latex gloves and threatened to "f---- you up."

Rackauckas charged Cicinelli, 40, with involuntary manslaughter and assault and battery under color of authority, contending that he engaged in excessive force when he used a Taser first to jolt Thomas, and then as a cudgel to beat him.

In his pre-trial motion to dismiss, Ramos' attorney, John Barnett, contended that the officers were acting within the scope of their duties when they tried to detain Thomas and that the transient – who had schizophrenic tendencies -- caused the melee when he "defiantly disobeyed" a lawful order.

Deputy District Attorney Keith Bogardus countered in his written reply that there was no justification for Ramos to threaten Thomas with excessive force, and that Thomas was entitled to defend himself against the threat of violence.

The surveillance video shows Ramos and Officer Joseph Wolfe questioning Thomas for 15 minutes before the encounter turned violent when they tackled and pounced on the shirtless homeless man in a parking lot. Four other officers, including Cicinelli, arrived and piled on, prosecutors said. Thomas is heard on the videotape screaming for help, yelling that he couldn't breathe and calling out for his father.

Barnett said the defense will appeal Froeberg's ruling to the 4th District Court of Appeal in Santa Ana.

Froeberg tentatively scheduled a jury trial for Ramos and Cicinelli on June 27, but he noted Barnett and Cicinelli's lawyer, Michael Schwartz, would likely file a motion to continue.

Ron Thomas, Kelly's father, opposed any further delay in the trial, noting that it will soon be two years since his son died, He accused defense attorneys of stalling, and implored the judge to proceed with the trial, "for my son."

Wolfe was indicted separately on involuntary manslaughter and excessive-force charges, and his case is trailing. Michael Nasatir, his lawyer, said he, too, plans to file a motion to dismiss charges for lack of evidence. Froeberg scheduled a trial-setting conference on Wolfe's case for March 29.

Tony Rackauckas, Orange County's elected district attorney, shows Fullerton police Sgt. Michael Chocek, a witness, a Taser similar to the one allegedly used as a blunt-force weapon against Kelly Thomas, during day three of a preliminary hearing into the homeless man's death. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER
Fullerton police officer Manuel Ramos is taken into custody after an arraignment hearing in Orange County Superior Court. PAUL RODRIGUEZ, THE ORANGE COUNTY REGISTER
Defense attorney John D. Barnett, who is representing Fullerton police Officer Manuel Ramos, delivers his closing argument during day three of a preliminary hearing into the death of Kelly Thomas. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER
A photo of Kelly Thomas that was on a birthday poster for the homeless man killed in Fullerton. ROD VEAL, THE ORANGE COUNTY REGISTER
An evidence photo shown in a Santa Ana courtroom on May 7, 2012, shows Fullerton police Officer Joseph Wolfe immediately following an altercation that ultimately lead to the death of Kelly Thomas, a homeless man in Fullerton. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER

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